Jackson v Western Australia Police
[2014] WASC 72
•12 MARCH 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: JACKSON -v- WESTERN AUSTRALIA POLICE [2014] WASC 72
CORAM: COMMISSIONER SLEIGHT
HEARD: 4 MARCH 2014
DELIVERED : 4 MARCH 2014
PUBLISHED : 12 MARCH 2014
FILE NO/S: SJA 1159 of 2013
BETWEEN: COLIN MARK JACKSON
Appellant
AND
WESTERN AUSTRALIA POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P M HEANEY & MAGISTRATE M S KING
File No :PE 6046 of 2013, PE 60647 of 2013, PE 6048 of 2013
Catchwords:
Practice and procedure - Appeal against decisions of magistrates - Refusing application for trial by jury under the Magna Carta - Whether Supreme Court has jurisdiction to hear appeal
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms C E Brandstater
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Chia Gee v Martin [1905] HCA 70; (1905) 3 CLR 649
Glew v White [2012] WASCA 138
Pengelly v Serpentine Jarrahdale Shire [2014] WASCA 5
Quan Yick v Hinds [1905] HCA 10; (1905) 2 CLR 345
Rogers v Squire (1978) 23 ALR 111
Shaw v The State of Western Australia Attorney General Mr Jim McGinty [2004] WASC 144
Vincent v Ah Yeng (1906) 8 WALR 145
COMMISSIONER SLEIGHT:
(This judgment was delivered extempore and was edited from the transcript.)
The appellant, Mr Jackson, was charged in the Magistrates Court with three offences, namely:
1.That on 27 November 2013 at Serpentine, Mr Jackson unlawfully trespassed contrary to s 70A(2) of the Criminal Code (WA).
2.On the same date and place Mr Jackson wilfully obstructed a person then lawfully charged with the execution of a warrant lawfully issued by the Supreme Court, contrary to s 151 of the Criminal Code.
3.On the same date and place Mr Jackson obstructed a public officer, in the performance of the officer's function contrary to s 172(2) of the Criminal Code.
On 12 December 2013 the charges came before his Honour Magistrate P M Heaney in the Perth Magistrates Court and on that occasion Mr Jackson 'demanded' a trial by jury under 's 29 of the Magna Carta'. The learned magistrate dismissed the application on the grounds that the Magna Carta did not apply. The proceedings were adjourned to the Armadale Magistrates Court being the court closest to the place where the alleged offences took place.
On 17 December 2013, the charges against Mr Jackson came before his Honour Magistrate M S King in the Armadale Magistrates Court. Mr Jackson renewed his application to have a trial by jury under 's 29 of the Magna Carta'. The learned magistrate on this occasion also rejected the application.
His Honour Magistrate King considered that all of the charges were for summary offences and remanded the matters through to 11 February 2014 for the allocation of trial hearing dates. With respect, the learned magistrate was not correct in concluding that all matters were summary charges. The charges under s 151 and s 172(2) of the Criminal Code are both for offences that are indictable offences for which a summary conviction penalty applied. Pursuant to s 5(2) of the Criminal Code the court is to try the charge summarily unless, on an application by the prosecutor or the accused before the accused enters a plea, the court decides under s 5(3) that the charge should be tried on indictment or the Criminal Code or another written law expressly provides that the charge must be heard by indictment.
Under s 5(3) of the Criminal Code the court may decide that the charge is to be tried on indictment if and only if it considers one of the following:
(a)that the circumstances in which the offence was allegedly committed are so serious that, if the accused were convicted of the offence, the court would not be able to adequately punish the accused; or
(ba)that the circumstances in which the offence was allegedly committed are such that, if the accused were convicted of the offence, the Sentencing Act 1995 Part 2 Division 2A would apply to the sentencing of the accused for that offence; or
(b)that the charge forms part of a course of conduct during which other offences are allegedly committed by the accused and the accused is to be tried on the indictment for one or more of those other offences; or
(c)that a co‑accused of the accused is to be tried on indictment; or
(d)that the charge forms part of a course of conduct during which other offences were allegedly committed by the accused and others and the accused or one of the others is to be tried on indictment for one or more of those other offences; or
(e)that the interests of justice require that the charge be dealt with on indictment.
A decision made under s 5(3) is final and cannot be appealed (s 5(7) of the Criminal Code).
Notwithstanding the error made by the magistrate the proceedings have not concluded and Mr Jackson did not formally enter any plea to the charges.
Mr Jackson has not made any formal application to the magistrate under s 5(2) of the Criminal Code.
The charges were remanded to a trial listing date and the trial dates have now been allocated. The right to make an application under s 5(2) of the Criminal Code still appears to be intact.
Mr Jackson appeals against the decisions of the learned magistrates in dismissing his application for trial by jury under 's 29 of the Magna Carta'.
The grounds of appeal contained in the appeal notice are listed as follows:
1.Appellant appeals in tort; Both the magistrates Heaney and King have; jurisdictionally erred and have breached my Inherent jurisdiction, Unalienable rights, Common Law, rights Under The British Colony of the Commonwealth of Australia, Constitution Act,[63 & 64] (Chapter 12) 1901, Chapter III court; rights of a trial by jury under section 29 of magna carta.
2.Appellant appeals in tort; as magistrates [sic] Heaney erred; abused me, insulted me, I felt Intimidated, magistrate Heaney refused me my Inherent jurisdiction, Unalienable rights, Common Law rights Under the Original Constitution; The British Colony of the Commonwealth of Australia, Constitution Act, [63&64] (Chapter 12) 1901; Chapter III court; rights to a trial by jury and section 29 of magna carta.
3.Appellant appeals in tort; as magistrate King erred saying that Magna carta is English law not relevant here, and that the criminal code overrides the magna carta, and refused me my Inherent jurisdictional rights to a trial by jury, Under The British Colony of the Commonwealth of Australia, Constitution Act, [63&64] (Chapter 12) 1901; Chapter III court; and section 29 of magna carta.
4.Appellant appeals in tort; both magistrates Heaney and King erred; disobeying my Inherent jurisdiction, Unalienable rights, Common Law rights Under The British Colony of the Commonwealth of Australia, Constitution Act,[63&64] (Chapter 12) 1901, Chapter III court, and Section 29 of magna carta.
5.Appellant appeals in tort; both magistrates Heaney and King erred; disobeyed Inherent jurisdiction a law of The British Colony of the Commonwealth of Australia, Constitution Act, [63&64] (Chapter 12) 1901; Chapter III court; and section 29 of the magna carta.
The appeal notice is in the form of Form 83 for an appeal under O 65 r 10 of the Rules of the Supreme Court 1971 (WA). Order 65 applies to any appeal, or application for leave to appeal, that may be made to the General Division of the court, other than as an appeal under the Criminal Appeals Act 2004 (WA) pt 2.
Administratively, the court has treated the appeal as an appeal under the Criminal Appeals Act pt 2 and on 5 February 2014 his Honour Justice Corboy made programming orders for the hearing of the appeal.
It is clear that if the appeal had been pursuant to the Criminal Appeals Act, then the applications for leave to appeal would be dismissed. This is because the jurisdiction granted to hear appeals against decisions of summary jurisdiction under the Criminal Appeal Act is limited to the decisions defined in s 6 of that Act. The decisions which can be appealed against are defined as follows:
(a)a judgment entered under the Criminal Procedure Act 2004 section 128(2) or (3);
(b)a decision ordering a permanent stay of a prosecution;
(c)a decision to convict an accused of a charge, whether after a plea of guilty or after a trial;
(d)a decision to acquit an accused of a charge;
(e)a decision to acquit an accused of a charge on account of unsoundness of mind;
(f)a sentence imposed, or order made, as a result of a conviction or acquittal;
(g)a refusal to make an order that might be made as a result of a conviction or acquittal;
(h)a decision as to costs;
(i)a decision made under the Criminal Investigation Act 2006 section 151.
It is quite clear that the decisions Mr Jackson appeals against do not fall within this list of decisions contained in s 6 and therefore this court has no jurisdiction to hear this appeal under the Criminal Appeals Act.
However, as stated earlier in this decision the appeal lodged by Mr Jackson purports to be an appeal to the General Division other than under the Criminal Appeals Act. Such an appeal has a number of problems.
Firstly, the appeal notice lodged by Mr Jackson states for each ground of appeal that it is an appeal in tort. With respect to Mr Jackson, who is unrepresented, such an appeal cannot succeed. No issue within the jurisprudence of the civil remedies of tort arises from the decisions of the learned magistrates. A notion that the appeal grounds raise an issue of tort is misconceived.
Secondly, other than an appeal under the Criminal Appeals Act (which is not available to Mr Jackson for the reasons I have given) there is no other right of appeal to this court against a magistrate's decision. However, under s 36 of the Magistrates Court Act 2004 (WA) there is power for the Supreme Court to review decisions of magistrates on various grounds but the procedure is not by way of an appeal but a procedure contained in Order 56A of the Rules of the Supreme Court.
Even if the jurisdictional and procedural issues of this appeal could be overcome, the decision of the learned magistrates that the Magna Carta did not apply is clearly correct. The Magna Carta comprised of 37 statutes. For the purposes of this matter the relevant provision is chapter (not section) 29. It provides as follows:
No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.
The statutes of the Parliament of the United Kingdom of general application in force on 1 June 1829 were inherited into the law of Western Australia if they were suitable for local conditions: Quan Yick v Hinds [1905] HCA 10; (1905) 2 CLR 345, 356 (Griffith CJ); Rogers v Squire (1978) 23 ALR 111, 116. On this basis it appears the Magna Carta became a part of the law of Western Australia but it was not a statute that had paramount force. This means that statutes of Western Australia operate to repeal provisions of the Magna Carta either expressly or impliedly to the extent that the statutes are inconsistent with or repugnant to the provisions of the Magna Carta: Chia Gee v Martin [1905] HCA 70; (1905) 3 CLR 649, 653; Vincent v Ah Yeng (1906) 8 WALR 145; Shaw v The State of Western Australia Attorney General Mr Jim McGinty [2004] WASC 144.
The Criminal Code sets out a code of offences and how they are to be dealt with, either by indictment or summarily. That code clearly covers the field and either expressly or impliedly repeals any provision of the Magna Carta which may be interpreted as giving a right of trial by jury. Using the language of Griffith CJ in Chia Gee v Martin the contention that a law is invalid because it is not in conformity with the Magna Carta is not one for 'serious refutation'.
Ground 3 of the appeal contends that Magistrate Heaney abused Mr Jackson, insulted him and Mr Jackson felt intimidated. I accept that some of the language used by his Honour revealed some frustration with the application by Mr Jackson. This is regrettable. However, as observed by McLure P in Pengelly v Serpentine Jarrahdale Shire [2014] WASCA 5, having to deal repeatedly with issues that have been held to be devoid of merit can, not unreasonably, induce judicial exasperation and frustration, particularly in a busy court with heavy demands on its resources. The contentions raised in ground 3 add nothing to the ground of appeal and I need not deal with the issue further.
Yesterday Mr Jackson filed by facsimile, an affidavit and written submissions raising matters which were of a similar nature as that dealt with by the Court of Appeal in Glew v White [2012] WASCA 138, that is, they raised eccentric theories about the judicial power of the Commonwealth, the Constitution, the right to trial by jury and the status of the courts in this state. None of these submissions have relevance to the grounds of appeal, and none of the submissions raise an issue which has any prospect of succeeding. They do not give rise to any appealable error or miscarriage of justice.
For the above reasons the appeal in this matter is dismissed.
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